Error or arrogance: open meetings violations come in all varieties

COG2To its great credit, the Nelson County Board of Education recently acknowledged that its failure to observe the requirements for going into closed session at its August 3 meeting violated the open meetings law.

On August 12, the Nelson County Gazette reported that it had filed an open meetings complaint with board chair Diane Breeding in which it alleged that the board’s failure to give public notice of the general nature of the business to be discussed in closed session, the reason for the closed session and the statutory exception authorizing the closed session violated the law. As required by statute, the newspaper proposed several remedies, most of them aimed at improving the board members’ understanding of their legal obligations under the law.

On August 17, the newspaper reported that the board’s attorney admitted that its members “inadvertently failed to follow the proper procedure as prescribed by the Open Meetings Act.” While school board members are afforded ample opportunity to learn — or to educate themselves — about the legal requirements for open meetings compliance, mistakes are made. The board’s prompt acknowledgement of error suggests that it was, indeed, inadvertent.

Mistake made and acknowledged. Lesson learned.

Unfortunately, not all public agencies are willing to acknowledge open meetings error. Their “holier than thou” rhetoric suggests that they are entirely incapable of any error.

Witness the Jefferson County Board of Education’s reaction to 17-OMD-161, an open meetings decision issued by the Kentucky Attorney General on August 14 following the submission of an appeal by the Bluegrass Institute Center for Open Government. That appeal focused on the board’s decision to conduct a public meeting in a private law office located on the 28th floor of a downtown Louisville building – on a Sunday afternoon – and alleged that the location was not convenient to the public as required by law

The attorney general agreed that a private law office was not a place convenient to the public. He observed,  “A public meeting must be held in ‘a place from which no part of the citizens … may be excluded by reason of not feeling they may freely attend.’ The standard here is one of reasonableness. In this case, the Board met in a private law office . . . . [Based on] common experience as well as the specific experience of the [representatives of the Bluegrass Institute] when [unsuccessfully] attempting to access the office of Wyatt, Tarrant & Combs on a Sunday, we believe it reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting there.”

Kentucky’s open meetings law requires that public agencies conduct their meetings at times and places convenient to the public. It makes no reference to places designed to minimize agency cost. Most importantly, it makes no reference to the convenience of the public agency.

WDRB reports that in responding to the open meetings decision, the board chair “criticized as ‘ludicrous’ the Bluegrass Institute’s claim that it found the doors of PNC Plaza locked when it tried to access the building on Sunday, July 9. ‘The only thing this group has done has guaranteed that any time there is a special meeting, even on weekends, that there will be a cost incurred by the taxpayers of Jefferson County.’”

Mistake made but deflected. Lesson not learned.

Again, we marvel that public officials uniquely positioned to appreciate the value of education refuse to be educated about a law that governs every aspect of their public service. That law obligates the board to consider the right of the public to be informed even at a cost — albeit a conspicuously unspecified cost — to the agency whose past spending practices could hardly be described as parsimonious.

Like the Nelson County Board of Education, the Jefferson County Board of Education would do well to prioritize the public’s statutory rights above its own convenience and, yes, unspecified costs.




“What is the harm” when an agency conducts the public’s business privately?

COG2Nearly five years after the Advocate-Messenger issued an open meetings challenge to the Danville Board of Commissioner’s actions in purchasing a building to house its public works department, the Kentucky Supreme Court heard oral arguments in the case on August 16, 2017.

So much for “proceedings arising under [the judicial enforcement provision of the open meetings law] tak[ing] precedence on the docket over all other causes.” Five years seems a long time to wait for finality.

The issue before the Court in Board of Commissioners of the City of Danville, Kentucky v. Advocate Communications, Inc., D/B/A The Advocate-Messenger is the propriety of the board’s closed session discussion of the building’s purchase under KRS 61.810(1)(b), its failure to take final action on the purchase in open session,  and its failure to respond to the Advocate-Messenger’s open meetings complaint.

This is not a typical case arising under the exception authorizing closed session “deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency.” Given the unusual circumstances surrounding the purchase and the Advocate-Messenger’s decision to withdraw its proposed remedy to nullify the contract to purchase the building, the Court questioned how it could develop a precedent for other cases.

At one point Justice David Venters asked the attorney for the Advocate-Messenger, veteran open records and meetings champion Jon Fleischaker, to identify the injury to the public resulting from the execution of the contract to purchase the building.

Without missing a beat Fleischaker responded, “It is the violation of the open meetings law.”

He is, of course, right. It is the act of depriving the public of its right to know how its elected officials conduct its business.

The backstory in the case of this $1.23 million purchase is a complicated one. It begins with the city’s lease of the building for its public works department in 2004, the expiration of that lease in 2011, a subsequent month to month lease, and the later approval by the board of a search for a new facility at a budgeted amount of $2 million.

On July 17, 2012, the building’s owner announced an absolute auction of the building to be conducted on August 10. Anticipating that auction, at a July 23 public meeting the board went into closed session to discuss the purchase of the building, which had been appraised for $1.5 million.

The facts and law become murky at this point. It is not disputed that the board privately authorized the city manager to engage a bidding agent, a local realtor, to bid on the property at the auction and set a maximum bid of $1.5 million. At the August 10 auction, the city’s agent made the winning bid. The city manager thereafter signed a contract to purchase the building and tendered a $123,750 down payment.

None of these events were discussed in any open session at any public meeting.

On August 13, the board held another meeting. It emerged from another closed session and approved the purchase contract and the already executed down payment. It was at this point that Danville’s residents first learned that their officials had purchased the building.

The Advocate- Messenger subsequently challenged the board’s actions under the open meetings laws to the attorney general. In 12-OMD-179 that office ruled that, “The public was entitled to know each [Board] members’ position on the purchase of the [building]at the time the agreement was reached to extend a bid and not after the purchase was consummated. Although its intent in failing to conduct a public vote on the purchase may have been prompted by a desire to acquire the building at the least cost and in the most fiscally responsible way, the [Board] did not enjoy the privilege of cloaking its final action in secrecy, and its decision to do so” violated  the open meetings law.

To paraphrase Fleischaker in his argument to the Court, the city’s position is premised on the belief that  it was permitted to violate the open meetings law if there was a “good fiscal reason.” Its position is flawed. Even if public discussions put the city at a disadvantage, its elected officials did not have the authority to abridge the open meetings law and the public’s right to know.

The Boyle Circuit Court endorsed this reasoning as did the Kentucky Court of Appeals. The ball is now in the hands of the Kentucky Supreme Court.

I learned long ago not to try to predict the likely outcome of a case based on the Court’s interaction with counsel. This much is clear: the legislature has fixed the scope of permissible closed session discussion, and public agencies have no authority to exceed the permissible scope. The injury to the public lies in the violation of the law and – ultimately — the breach of the public trust.

More from Kentucky’s Office of Education Accountability regarding school attendance

The Kentucky Legislature’s Office of Education Accountability (OEA) presented an interesting report to the Education Assessment and Accountability Review Subcommittee on August 15, 2017 with some really attention getting information.

I already discussed one stunning OEA finding that a majority of Kentucky’s public school students meet the legal definition of being truants.

Today, I briefly touch on results from an OEA survey of the state’s school superintendents on the issue of changing the state’s mandatory minimum dropout age to 18. This change in the minimum dropout age was set in motion in 2013 by Senate Bill 97. The bill was heavily pushed by former Kentucky First Lady Jane Beshear and was heralded as a way to improve graduation rates even though research at the time indicated most states that had raised their dropout age were not reaping much in benefits.

The OEA says by January 2015 all districts had adopted an Age 18 minimum dropout requirement.

So, OEA asked some questions in its superintendent survey about what has happened since SB-97 came along, and, not surprisingly, there were unintended consequences.

OEA reports that:

“The majority (52 percent) of survey respondents indicated that SB 97 (2013) had increased the number of truant students and nearly two-thirds (65 percent) said it increased the number of students entering home school.”

OEA provided some numbers to back this up, as well, as Table 1 below shows.

Table 1

Summary of Superintendent Responses About Age 18 Bill (SB-97, 2013)

Notice in the upper left corner of Table 1 that 46.8 percent of the superintendents in the OEA’s survey said they saw a decrease in their dropouts after this legislation became effective, but there is much more to this story.

Most surprising, despite the legislation’s intent, the bottom line in Table 1 shows a solid majority of the superintendents said that either there was no improvement in the high school graduation rate (47.8 percent) or the rate actually declined (add another 11.5 percent).

Furthermore, over half of the superintendents, 51.6 percent, said they also saw a rise in their truancy rates.

Also significant, well over half of the superintendents, 65.4 percent, said they saw an increase in students leaving the public school system to supposedly home school. Legislators at the EAARS meeting latched onto that because there are concerns that some students might be claiming to go to home school but really are just using this as a dodge to get around the minimum age of 18 to dropout. Some other data in the OEA’s presentation bears on this issue.

Table 2 primarily comes from Slide 37 in the OEA’s presentation, but I added some additional items in the yellow-shaded area at the bottom of the table.

Table 2

Students Transferred to Homeschool or Dropped Out

As you can see, while dropouts decreased between 2012 and 2016, there has been a notable rise in the number of high school students moving to homeschool compared to the transfers to homeschool for students in elementary and middle school grades. That is already cause for concern, but I looked at something additional the OEA didn’t consider.

Since all districts didn’t adopt the Age 18 rule until 2015, I added a set of calculations for the one-year change from 2015 to 2016. Here the difference in high school versus lower grades transition to homeschool is much more pronounced. In fact, the change in the percentage of transfers in high schools is more than three times the change for elementary and middle school grades, 18.6 percent versus only 5.8 percent.

Also quite notable, the increase in high school transfers to homeschool between 2015 and 2016 of 531 students is much larger than the decrease in the number of dropouts of only 64 students between those years. If the supposed transfers to home school are really just a dodge to work around the Age 18 dropout restriction, then the real dropout situation might be much worse than the official numbers indicate.

During the meeting the OEA team mentioned that Kentucky’s rules for home schooling are fairly loose, and it isn’t really possible to investigate the veracity of the supposed home school transfers due to restrictions found in the Kentucky constitution that severely limit the legislature’s ability to pass laws regarding home schools.

So, the real impact of Kentucky’s Age 18 to drop out law is not as clear as you might suspect. A lot fewer kids might really be getting an education than the drop out data would suggest.

The thrill of victory and the agony of defeat: authorities’ handling of open meetings and records disputes yields conflicting results

COG2In a short span of 24 hours Kentucky’s open meetings and open records laws were handed a significant victory and a serious defeat.

The thrill of victory: Bluegrass Institute v. Jefferson County Board of Education

The victory occurred when the Bluegrass Institute and its Center for Open Government prevailed in an open meetings appeal involving the Jefferson County Board of Education.

On August 14, Assistant Attorney General James Herrick agreed with the Bluegrass Institute that a special meeting —  conducted by the Board of Education on  Sunday, April 30, in private law offices located in downtown Louisville —  violated the legal requirement that public agencies conduct their meetings “at specified times and places convenient to the public.”

JCPS argued that the meeting site was chosen to avoid inconvenience to JCPS staff and “conserve the considerable costs associated with opening the VanHoose Education Center on a weekend.”

Herrick rejected these arguments in his 17-OMD-161 ruling that “[a] public meeting must be held in ‘a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend.”

He was persuaded by  “common experience as well as the specific experience of” representatives of the Bluegrass Institute — who were unsuccessful in their attempts to gain entry to the downtown office building  on a subsequent Sunday afternoon —  concluding that “it [is] reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting.”

“This is not a situation in which a suitable public building was unavailable,” Herrick wrote. “Here, in addition to the VanHoose Education Center, the Jefferson County Board of Education governs a system of approximately 174 schools,” containing suitable public meeting rooms.

“With such a selection of locations available in public buildings,” he concluded, “we cannot reasonably find it ‘convenient to the public’ to hold a public meeting in a private law office . . . based solely on unspecified ‘costs’ of opening the VanHoose building on a Sunday.”

The Bluegrass Institute was pleased with the open meetings decision. Our goal in bringing the appeal was to establish that meetings of public agencies must always be conducted at times and places convenient to the public – even if it causes inconvenience to the public agency – and we believe we achieved this goal.

The agony of defeat: Commonwealth of Kentucky, ex rel. Andy Beshear v. University of Kentucky

One day before receiving news of our successful open meetings appeal against the Jefferson County Board of Education, the Lexington Herald Leader reported that on August 10 the Fayette Circuit Court ruled in favor of the University of Kentucky in an opinion that will seriously impede the ability of the Attorney General to effectively discharge his statutory duties under the open records law. The court ruled that UK was not required to honor the attorney general’s KRS 61.880(2)(c) request to review records — if characterized by the university as “education records” — for purposes of mediating an open records dispute.

Commonwealth of Kentucky , ex rel. Andy Beshear v. University of Kentucky, originated in an appeal filed by the Kentucky Kernel from the University’s denial of an open records request for the report of its investigation into allegations of sexual assault leveled by students against a professor who was permitted to resign from the university under very generous terms.

In correspondence directed to the attorney general after the Kernel initiated its appeal, UK  acknowledged the existence of a single oral complaint – subsequent events confirmed the existence of multiple written complaints – but relied on the attorney-client privilege and a federal law, the Family Educational Rights and Privacy Act (“FERPA”), to defend its denial of the newspaper’s request.

FERPA is intended to protect student education records from public disclosure, not to protect records relating to the educators who inflict injury on students.

Given this fact, the attorney general invoked KRS 61.880(2)(c) to request documentation from UK to substantiate its denial of the Kernel’s request including a copy of the report itself. In spite of the fact that KRS 61.880(2)(c) clearly authorizes this action, and assigns the burden of proof to the public agency, UK flatly refused to comply with this request.

In one of my last official acts as an assistant attorney general I wrote 16-ORD-161, concluding that UK had not met its statutorily assigned burden of proof and rendering a decision in favor of the Kernel.

I was unwilling to blindly accept, “without further proof in the form of a review of the report under KRS 61.880(2)(c) ‘for substantiation,’ that the report [,generated to comply with federal requirements, and not for the rendition of legal services, was]  attorney-client and work product privileged.”  Absent substantiation, I was also unwilling to defer to UK’s characterization of the report as a FERPA protected education record since it involved “records containing allegations of misconduct against a professor, not a student.”

In a 25 year career mediating open records disputes, I regularly employed KRS 61.880(2)(c) to ensure a fair and thorough review of the legal issues presented. I considered it the single most important tool in ferreting out the truth in an appeal.

And now the Fayette Circuit Court has declared the attorney general’s KRS 61.880(2)(c) authority forfeit in cases where a university invokes FERPA. If this ruling stands, the consequences will be serious, though perhaps not fatal, to the Attorney General’s review. While he can still require a university to meet its burden of proof that disputed records are education records through detailed description of the records, he will be constrained from reviewing the records to independently verify the university’s representations.

Under these circumstances, applicants may be forced to bypass the attorney general and proceed directly to circuit court for review of university denials based on FERPA  –  burdening the courts and incurring costs and attorneys’ fees along the way. Once on this slippery slope, who knows where it will lead?

Attorney General Beshear has announced his intent to appeal the circuit court’s opinion.  We commend him for doing so just as we previously commended him for intervening in the original action. Nothing less than the future of his office’s decades long role as a mediator of open records disputes may be at stake.


Bluegrass Institute News Release: Center for Open Government scores victory in JCPS open meetings appeal


BIPPS LOGOFor Immediate Release: Wednesday, August 16, 2017COG2

(FRANKFORT, Ky.) — The Kentucky Attorney General has ruled in favor of the Bluegrass Institute and its Center for Open Government in an open meetings appeal involving the Jefferson County Board of Education.

Assistant Attorney General James Herrick in a decision released Monday agreed with the Bluegrass Institute that a meeting conducted by the JCPS board on Sunday, April 30, in private law offices on the 28th floor of a downtown Louisville building violated the legal requirement that public agencies conduct their meetings “at specified times and places convenient to the public.”

The meeting was held to discuss applicants for the school district’s then-vacant interim superintendent’s position.

Herrick rejected the district’s claim that the meeting site was chosen to avoid inconvenience to JCPS staff and “conserve the considerable costs associated with opening the VanHoose Education Center on a weekend.”

The VanHoose building at 3332 Newberg Road serves as the district’s central office where the board normally convenes.

Relying on past open meetings decisions, Herrick ruled that “[a] public meeting must be held in ‘a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend.”

Based on previous decisions and “common experience as well as the specific experience of” Bluegrass Institute representatives who were unsuccessful in their attempts to gain entry to the 28th floor of the building at 500 West Jefferson Street on a subsequent Sunday afternoon, Herrick concluded that “it [is] reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting.”

Center for Open Government Director Amye Bensenhaver praised not only the decision but Herrick’s reasoning.

“Our goal in bringing this appeal was to establish that meetings of public agencies must always be conducted at times and places convenient to the public – even if it causes inconvenience to the public agency,” Bensenhaver said. “Regardless of whether the agency believes the issue to be discussed worthy of public interest, it’s required to conduct meetings at locations from which no member of the public may feel excluded.”

It’s not as if a “suitable public building was unavailable,” Herrick wrote, noting the availability of appropriate meeting rooms at the district’s “approximately 174 schools” in addition to the VanHoose facility.

“With such a selection of locations available in public buildings, we cannot reasonably find it ‘convenient to the public’ to hold a public meeting in a private law office on the 28th floor of a privately-owned building, based solely on unspecified ‘costs’ of opening the VanHoose building on a Sunday,” he concluded.

Bensenhaver noted that past court rulings establish clearly that “an agency’s failure to comply with the strict letter of the law in conducting its meetings ‘violates the public good.’ We intend to hold public agencies to the strict letter of the open meetings law.”

If not appealed to circuit court within 30 days, an open meetings decision issued by the Kentucky attorney general has the force and effect of law.

For more information, please contact Amye Bensenhaver at or 502.330.1816.


How’s That???!!! Majority of Kentucky’s students are officially truants!!!!

The Kentucky Legislature’s Education Assessment and Accountability Review Subcommittee heard a report in Frankfort today about “School Attendance in Kentucky” from the Legislative Research Commission’s Office of Education Accountability.

And, it didn’t take long for a real shocker to surface.

As the one of the OEA’s briefing slides puts it:

“The majority of Kentucky students are truant and more than 40 percent of Kentucky students are habitually truant under the terms of KRS 159.150.”

The OEA pointed out that statute KRS 159.150 defines truancy this way:

“Truant-Any student who has attained the age of six years, but has not reached his or her eighteenth birthday, who has been absent from school without valid excuse for three or more days, or tardy without valid excuse on three or more days, is a truant.”

A habitual truant was listed as:

“Any student who has been reported as a truant two or more times is an habitual truant.”

Unfortunately, the OEA didn’t really get into reasons why students became truant. One thing I wondered about is with many Kentucky kids riding a bus to school was whether they were logged as missing school or late when it really was a school bus problem (e.g. running late or cancelled due to no driver available).

Regardless, the statistic is stunning and I think the subject of attendance and truancy is going to get more legislative attention.

There was a lot more in the OEA’s presentation today, so stay tuned.

Kentucky’s pension crisis: The wrong question

It’s apparent from KET’s Kentucky Tonight forum on the public-pension crisis last night and legislators’ comments about the issue in Sunday’s Madisonville Messenger that substantially addressing the systems’ combined $40 billion shortfall will require overcoming hurdles related a general lack of knowledge about how defined benefit pension systems work and the lack of resolve to address future benefit accrual rates for current beneficiaries.

Unfortunately, Kentucky’s pension beneficiaries have been misled to believe that the highest benefit they receive for any year of service applies to any and every year they work. However, the level of benefits in a defined benefit system like Kentucky’s are established annually based on assumptions made by the actuaries for each year.

These actuarial assumptions – including investment returns, payroll growth, inflation, longevity, retirement age and attrition rates – are considered annually to both determine the level of benefits for that year and to create the reserve needed to ensure the funds are available to award that year’s benefit to beneficiaries when they retire. (The actual amount of beneficiaries’ pension checks are determined by adding the benefit factor – the percentage of final average salary each year – usually between 1.5 percent and 3 percent – for all years of service.)

Benefits in such a system are synchronized and therefore must, in a properly run defined benefit system, fluctuate according to what the system can properly pre-fund – a determination made by the actuarial assumptions.

The problem here is that the benefits in Kentucky’s retirement plans have always increased but never decreased, which is not the way a defined benefit pension system works but it is the way you can create huge shortfalls.

So, the wrong question here is: Are you going to cut future pension benefits for current employees?

It’s the wrong question because no future benefits have yet been established since, in a defined-benefit system like Kentucky’s, the level of benefits are determined annually based on each year’s assumptions.

The right question is: If a defined benefit system like Kentucky’s is designed to avoid unfunded liabilities, why do we have a $40 billion unfunded liability and what must we do about it?

Glad you asked!

We must first stop the digging, which involves understanding how this liability was created and avoiding such practices in the future.

Quite simply, the liability in each of Kentucky’s major retirement plans exists because after the actuaries determined what the annual benefit levels should be – and after an actuarial reserve was created to ensure benefits would be funded at those levels – some politician in some future year decided to increase the benefit and apply those increases to previous years.

This disrupted the actuarial reserve already created for those previous years to ensure funding for benefits at the proper, actuarially determined level would be adequate and available. Such retroactive benefit enhancements are why the County Employees Retirement System (CERS), which has always paid 100 percent of their actuarially required contribution (ARC) is only 60 percent funded.

Putting the system back on track by ending the practice of both retroactive (past) and prospective (future) benefit enhancements and ensuring that benefits are properly awarded and not spiked in future years is not “cutting” benefits, even if the actuarially determined benefit winds up being lower because of actuarial assumptions.

Rather, it’s the responsible thing to do – if we want to have sustainable retirement systems, something I’m sure the beneficiaries might be interested in, as well. Once these benefit structures are addressed, then we can begin to find additional dollars and begin filling in Kentucky’s pension hole.

Legislative action related to the benefit structures of the systems in recent years has amounted primarily to some adjustments for new hires even though nervous policymakers desperate to be seen as doing something about the problem but not wanting to upset the apple cart have spun these meek moves as major reforms.

They certainly have done little to address Kentucky’s second-worst-in-the-nation unfunded pension liability. Meanwhile, the funding levels of the systems continue to drop toward insolvency.

If Frankfort takes the meek approach again and fails to address the benefit accrual rates of the state’s pension system, it will have failed to learn from history and will put the commonwealth’s entire pension system in peril.

Bluegrass Beacon: The soft bigotry of Blaine’s expectations

BluegrassBeaconLogoThe Supreme Court’s recent ruling that Missouri wrongly used its constitution’s Blaine Amendment to deny a publicly funded grant to a church-run preschool won’t directly affect growing efforts to add Kentucky to the list of states offering private school-choice programs in the form of tuition assistance via tax credits.

Tax-credit proposals like ones introduced in the Kentucky legislature in recent years have a perfect record in courts because they involve using voluntary private donations to create scholarships giving families the means to provide children with the best education possible.

Vouchers are more controversial because they allow families access to tax dollars for private, often religious, education.

Still, the high court’s ruling in Trinity Lutheran v. Comer signals a distinct weakening of support nationwide for school-choice opponents who would deny families a voucher simply because they might use funds to send their children to a religious school.

Trinity Lutheran Preschool of Columbia, Missouri, was denied access to a state grant for nonprofits to take advantage of a program recycling old tires as new playground surfaces.

Show-Me jurists pointed to their state constitution’s “Blaine Amendment,” which includes a prohibition that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

Kentucky’s constitution contains similar but even stronger language in Section 189: “No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.”

Such language first found its way into state constitutions after Sen. James G. Blaine of Maine failed to get a similar federal constitutional amendment through Congress nearly 150 years ago.

On the surface, these amendments were billed as solidifying the wall of separation between church and state.

Underneath, however, anti-Catholic sentiments boiled over.

Catholics began seeking public funding for their own schools because they didn’t want to send their children to the public schools of that day because, while they were called “nondenominational,” really were Protestant-oriented schools – complete with hymn singing and King James Bible readings.

Powerful politicians would not hear of it.

Civil War hero and President Ulysses S. Grant gave a highly publicized speech urging Congress to adopt a constitutional amendment to prohibit funding of so-called “sectarian schools.”

Supreme Court Justice Clarence Thomas more recently wrote for the majority in the Mitchell v. Helms decision in 2000 allowing religious schools access to federal loans that it was an “open secret” that “sectarian” in the language of Blaine was code for “Catholic.”

Ironically, the very amendment favored by Protestants long ago is now used against them by school-choice opponents who loathe religious institutions, especially private Christian schools.

Hiding behind the cloak of wanting to strengthen that separating wall, most school-choice enemies – led by teachers’ unions – insist they employ Blaine to protect minorities and individual rights.

Yet they continue to use this ancient amendment, which Thomas in the Mitchell ruling claimed was “born of bigotry,” to deny students living in the wrong zip code with two strikes already against them in life the opportunity to rise above “the soft bigotry of low expectations” – as one of Grant’s White House successors stated.

Kentucky’s policymakers and jurists must rise above primitive attempts to use Blaine as a weapon against giving families in this commonwealth the opportunity to provide their children the best education possible – regardless of the size of their paychecks or whether they choose a public, private or parochial school.

Trinity and other soon-to-be-decided rulings are opening the door for more school choice wider than it’s been in more than a century.

It’s time for Kentucky to step through it.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at He can be reached at and @bipps on Twitter.

A helpful hint for public officials: if the action you are contemplating contains the word “secret,” it probably violates the open meetings law

COG2My first law school exam presented a complex hypothetical involving multiple jurisdictional challenges faced by the fictitious manufacturer of a product called “Diaper Doo” –  a product that could only come from the warped mind of a law school professor. The object was to identify as many of those jurisdictional challenges as possible and to analyze them through the keen legal eye of a first semester One L.

I recalled my law school experience while attending a Kentucky State University Board of Regents’ special meeting on August 10. As part of an ongoing effort by the Bluegrass Institute’s Center for Open Government to promote awareness of — and compliance with — the state’s sunshine laws, my object in attending was to identify any open meetings issues that arose at the board’s meeting.

Sadly, I identified as many open meetings issues at that meeting as the jurisdictional challenges I failed to identify on my first law school exam. As the meeting proceeded, I felt as if I was taking a law school exam for a fictitious class called “Failing to Protect the Public’s Right to Know 101.”

When the meeting commenced with a call for a secret ballot on the election of a new chairperson, I knew it would be a bumpy ride. Just over a week ago I posted a blog analyzing a recent attorney general’s open meetings decision declaring that a small local agency’s secret ballot constituted a violation of the open meetings law.

The title of the blog was “Secret Ballots: The Ultimate Affront to Open Government.”

The open meetings decision that was the subject of the blog involved a little known joint planning commission in McLean County that raised a defense based on somewhat ambiguous facts. The board of regents of a state university is simply not entitled to such a defense, unavailing as it was for McLean County.

Under KRS 164.020(25), regents are required to complete six hours of orientation and instruction on topics that include “legal considerations including open records and open meetings requirements.” By separate statutory enactment, they are mandated to receive written information prepared by the attorney general concerning their duties under the open records and open meetings laws.

In this case, Regent Paul Harnice urged the board to conduct a public vote on the election of a new chairperson. That suggestion was somehow lost in the flurry of nominations. To add insult to injury, the board conducted a second secret ballot to elect a new vice chairperson. Two public votes on the elections of the remaining officers followed.

Counsel for the board, a widely respected Frankfort attorney, raised no objection and accommodatingly counted the ballots, announcing the final vote and the winner. Twice. He did not, and of course could not, identify how each regent voted.

Therein lies the problem.

KRS 61.835 requires public agencies to promptly record “minutes of action taken at every meeting of any public agency, setting forth an accurate record of votes and action taken at such meeting.” From 1982 to the present, that provision has been construed to absolutely prohibit a vote by secret ballot when a public agency takes final action in open session. The minutes must reflect how each member voted.

The minutes of the August 10 KSU Board of Regents’ special meeting will, perforce, be deficient. Based on longstanding legal precedent — reaffirmed on July 27, 2017 in 17-OMD-151 — the board’s action constituted a violation of KRS 61.835.

Even more sadly, this was just the beginning. The meeting itself was conducted by video teleconference, one member participating remotely pursuant to KRS 61.826. The first section of that statute reads, “A public agency may conduct any meeting, other than a closed session, through video teleconference.” Much of the two hour meeting was devoted to a lengthy closed session discussion of proposed or pending litigation and a personnel matter. Violation.

And that closed session? The departing chairperson announced the board’s intent to discuss pending litigation and a personnel matter. But KRS 61.815 requires that “Notice. . .be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.” These requirements were not observed. Violation.

There were questions concerning the propriety of the special meeting agenda and the presence of  items such as “opening remarks” and “closing remarks.” KRS 61.823(3) states that the notice of a special meeting “shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.”  This provision has long been construed to prohibit open-ended agenda topics – like “opening” and “closing” remarks — that defy limitation. Violation.

Toward the end of the meeting, the regents fondly discussed a retiring athletic advisor. Unfortunately, this was an impermissible topic because it did not appear on the special meeting agenda. Violation.

To his credit, KSU’s newly appointed president, Dr. M. Christopher Brown II, addressed deficiencies in past board practice with respect to adoption of meeting minutes. He agreed to serve as secretary to facilitate compliance with the legal requirement found at KRS 61.835 —  relating to the timely availability of the minutes — and requested an update on the board’s recordkeeping practices.

Dr. Brown’s efforts will go a long way to improving the perception of how KSU’s board conducts the public’s business. But the most important thing he can do to restore the public’s trust — and confidence in the university and its board — is to firmly commit to ensuring that the board conducts as much of its business publicly as is possible, or, at a minimum, as is legally required.





About those claims that the US has high poverty

Americans are frequently assaulted with amazing claims that our country has one of the highest poverty rates in the entire developed world. We get it from sources like the United Nations International Children’s Emergency Fund (UNICEF, sometimes just the United Nations Children’s Fund), the Organisation for Economic Co-operation and Development (OECD), and a host of others, as well.

For example, the Washington Post reported in April 2013 that the United Nations Children’s Fund had just issued a new report showing the US poverty rate ranked just one off the bottom on a list of countries from “virtually all of Europe plus Canada, Australia, New Zealand and Japan.”

These claims sound really grim, but are they accurate? Can it be that when many poor in the US somehow manage to have cell phones, TV’s, refrigerators and a lot of other things that these Americans still are badly off compared to, say, the poor in some of the former Communist satellite countries?

Actually, the same WaPo article provides clues to what is really going on, and it’s a classic example of why you really need to understand what is behind the numbers people keep passing around.

When you dig further into the Post’s article, it explains that UNICEF defines poor as living in a household that earns less than half of the national median income in their country.

In other words, UNICEF’s dubious statistics use a separate poverty level for each country. UNICEF isn’t keeping all the countries on a level playing field with their numbers.

The WaPo article expands on this, explaining:

“UNICEF is using its own ‘poverty line’ here; the more typical international definition is a family that lives on less than $1.25 or $2 per day. Almost no Americans qualify for this definition. Internally, the United States defines the poverty line as a family living on less than about $22,000 per year, which includes about 15 percent of Americans.”

So, not only does UNICEF measure poverty using unequal standards for each country, but if a common poverty scale accepted by many economic researchers is used, hardly anyone in the US falls under that common poverty level.

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